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28 October 2008

Restaurants That Bounce Payroll. Or, What To Do When Your Employer Is Being A Low-Down-Dirty Scoundrel

Everyone is having a hard time right now. Even if they don't know it. Everyone is getting smacked financially. Even if their Master hasn't demanded they drop their pants just yet, it's coming.

A spanking fest is coming to a restaurant near you.

Now it's time to weed out the doe eyed culinary graduates from the serious, stamina-strong line cooks. The hope is that fewer restaurants mean fewer shoemakers. Or, shoemakers will be all that's left when the good cooks and chefs go to where they're appreciated, paid on time and cooking food with integrity.

Now is the time, Restaurant Owners, to take that arithmetic class you've been waiting for. Because those percentages? They ain't on your side. And chefs? Just because you're a damn fine cook with mad skillz, shiny whites in your mouth and around your puffed-out chest, don't mean you can run a kitchen.

It's on.

Someone more adept at this than I said last March 20th, "It's going to be just like the 90's and the Dot Com Bust: a clearing out is going to happen. And many restaurants will fall, only to leave the strong ones standing."

People will see some of their favourite restaurants close. Busy places that, 'must be doing really well.'

And so it begins. Only those restaurants with money in the bank, money set aside and gathering what little strength it can; so one day [soon] those innocent pieces of paper will grow up to be a magic carpet ride, gathering up the house to carry it through these brutal times.

As a good friend of mine says, I want to hit the'do what I want, dammit'button right about now. But I can't. I waited and pieced together what I could here until another land seemed better. Any land with a job, in fact, seemed better.

But I took a question recently that made my heart sink. And then my blood boiled.

"What can I do if my employer is not paying me us?"

And I remembered. I remembered walking to work one morning in the Flatiron district in NYC. I passed a large, hip restaurant where I knew the latest and former sous chef, and some of the cooks, and I looked at the front door and kept walking. And then I did a double-take. A double-take that can only happen on the early morning empty streets of New York City.

I saw a chain with links the size of my torso wrapped around the whole building with a padlock bigger than my arm span holding it together. I thought I might be on a movie set. And then I saw the flourescent sticker. "City Closure. Do Not Enter Premises."

Bouncing payroll is illegal and paying employees cash is not optimal, but not paying people at all? It's really illegal.

Because you know why? The money you are giving your workers is for HOURS THAT THEY HAVE ALREADY WORKED. The check you sign is not a fucking gift. It's not a thank you note or a bouquet of flowers for bedding you.

When you hire someone, whether they are "on the books" or off, you make an agreement with them, albeit an uneven one. Your employees do not owe you anything past the agreement, least of all sympathy for your mismanagement of the money they help you earn.

Do you work in a restaurant that is withholding your pay? Are you a waiter whose house is taking your tips? Are you a sometimes worker who gets a heavy envelope some weeks and a light one on others? Have you agreed to be a "Consultant" without getting anything in writing from those lovely people who seem nice enough but won't answer your emails after you've invoiced them? Is your boss absent on payday?

If you work in California the labor laws are written for employees. This is not true for all States and not all countries. If you work in San Francisco you may speak to a real person anonymously to find out your rights or just sneak into a nondescript office to pick up pamphlets. In many languages, not just English.

"Violations by an employer of any of the Industrial Welfare Commission Orders respecting payment of the minimum wage,
payment of overtime, failure to give meal and/or rest periods,
reimbursement for uniforms, payroll record keeping, and cash shortages." This is just one paragraph from the California Government site concerning filing a claim with The Bureau of Field Enforcement.

And last, but definitely not least, you may file a claim against your employer by tracking down the information also on the Ca. Gov site. You can be an employee or a former employee. We're not talking Mad Max here, you will only be doing what's right for you, your fellow workers and the employees that might come after you, if the restaurant stays afloat. It's called a WAGE CLAIM and you can find out more by visiting 455 Golden Gate Avenue, SF, Ca. or going to the Division of Labor Standards Enforcement = DLSE, near you.

Even if you go to a DLSE merely for educational purposes, it's a long-lasting educational tool. Knowing your rights can be a blessing and a curse, as my grandmother would say. It has been both for me.

If you want to stay a wage earner your whole career than you don't need any of this advice. But the minute you turn into a manager/ owner/ partner enforcing local and federal labor laws, you'll need this bit of schooling. Better to get it now and keep it in the tool box, sharp, for a rainy day spell such as this one.

I like your blog so much :) It always gives me pause to think, a moment to question, or, in this instance, a chance to get fired up.

Here in Florida all folks are "at will" employees and can be let go on a moment's notice with little recourse. Viva La Revelucion.

Hello Greg,

Workers are "at-will" here and also in London, but this term does not take away anyone's access to City, State and Federal labor laws covering all workers. Many people died for these rights to get passed, and no one should ever be dissuaded from seeking them. Of course people still are, everywhere, which is one of the points of this post. ~ Shuna

Thanks for posting this. As an owner of a food business I think this is an excellent post because owners try to get the most out of their payroll dollar and employees need to protect themselves and know their rights. It keeps everyone honest with both sides knowing their rights. If you are an employee keep a record of your hours week to week. Pay attention to what is happening in your particluar establishment. Are the regulars cutting back? Has the owner cut back anywhere--food purchases, inventory, personnel, their own lifestyle -- all of these are clues they might be pro-active to the slow down and trying to ride out the storm. Is business volume or sales down? Just keep an open eye and think about your options. I know of many line cooks who are working side jobs in the food industry and other industries- non-competing with their main place of course until the rocky road smooths out. The food business is to some extent a love hate relationship- you love the job well most of it but sometimes the pay isn't so great for employees or employers and this is one of those times for both.

These are great resources, and I hope anyone with questions about payment and labor rights will use them. However, speaking from sad personal experience, if the business that employs is going down so hard that they can't make payroll, GET OUT ASAP. DO NOT WORK FOR FREE. I worked for a failing dot-com for over a month w/o a check on promises that we'd get paid soon...only to see the whole thing shut down. We filled out all the paperwork at the Labor Board to get the back pay we were owed...but were told that, unfortunately, the investors and creditors were in line before us. None of us ever saw a dime of what we were owed.

Ugh. I have personal experience with this. Unfortunately, there's only so much you can do. I'm in the tech industry and I was a part of the dot-com bust in 2001. My then-employer didn't pay me (us) for my last 5 weeks of work. By California law, if they don't give you what they owe you (including accrued vacation) the day they lay you off, they owe you for each day thereafter as though you were still working for them, up to 30 days. We sued the hell out of them via the Franchise Tax Board. Basically what came of it is they said, "Yep, we owe you that money, but we don't have it so too bad! :D" Taking that into account the extra 30 days and interest for 7 years, they owe me upwards of $10k-$13k (actually, probably more by now). I'll never see a penny of it. Really chaps my hide.

Thanks so much for those resources. It's actually very timely because my girlfriend (not in the business) hasn't been paid this month and hasn't been told when she will. Because it's a small company, there's no HR dept and she has no idea who to turn to.

I cooked briefly at a shiny brandspankingnew restaurant in SF that, beneath all the glamour, bounced payroll checks. While we talk of responsibility to people who bought houses that they couldn't afford, the same should go to people who start businesses that they don't know how to run, or that simply are not going to be successful because of the economy and the lack of demand. So many restaurants seem to fall into this, and I think that it has to do with the popularization of cuisine and the Food Network and other such garbage. Everyone just assumes they can cook, that they can run a business, and that it's their god-given slice of the american dream. Maybe it's time for some humility and respect.

Great post, Shuna, and one that royally ticks me off. I was lucky enough to work for an employer that paid me well, and on time. After that, I freelanced on my own, and only once got left holding the bill. No way I would ( or could) work for nothing...........

yep yep yep. The restaurant I work for is doing major cutbacks, trimming off all excess labor fat and really limiting food costs to the bare minimum. It is owned by a company who runs a few other high-end restaurants, a catering division, and a number of delis too, so I think the company will be fine; they've been around for awhile. But I am definitely feeling the pinch. Business isn't down compared to last year, which is a good sign, and since they're putting everyone on a spending freeze, that just shows that the business people are smart (even if the people whose hours are getting cut don't think so). I'm looking for a new job myself (outside the restaurant business), but I think it'll be awhile before I get one.

It was great meeting you on Saturday, and I'm enjoying your recent posts. For what it's worth, while America is an at-will employment jurisdiction, the UK is not. The Employment Rights Act here would be a first stop for anyone interested in employees' rights here.

You always seem to blog on a topic that is on my mind. My boss has been paying me late and it is pissing me off, making me a very cranky person in the kitchen. I don't bust my butt for no reason. Once employees are unhappy I think the business is doomed.

thank you! thank you! I'm a line cook at a high end restaurant and I'm paid hourly - usually 37-40 hrs/wk. Am I crazy or stupid for going in "off the clock" sometimes two hours ahead of time in order to get my station ready? Everyone says it's "the restaurant business dirty little secret" and you're supposed to come in on your own time? Also, if you don't then you don't have passion for food? Help!

hello Lotta, I don't think it's a secret that cooks do not have, nor will they ever have, 8 hour days. Cooks who have worked for me who expect a 40 hour week are delusional. If you can work faster and be more organized, you can work less hours, but I think the 8 hour day will always be considered part time, and we all know there are no part time cooking jobs. Full on or fired is what I've found. If you love the business, all those "extra" hours will pay off. ~ Shuna

Anyone know what the state of florida laws are if your employer (small company- 8 employees) doesn't make payroll. We don't want to be unfair, but want to have the law behind us when we address the issue with our employer next week.